Imágenes de páginas


359, 9 L.R.A.(N.S.) 874, 79 N. E. 742, 9 court, if the trustee is charged, can enter a Ann. Cas. 988; McNamara v. Boston & M. valid judgment against the property atR. Co. 202 Mass. 491, 89 N. E. 131; Hale tached. Sprague v. Auffmordt, 183 Mass. 7, v. New York, N. H. & H. R. Co. 190 Mass. 66 N. E. 416; Lowrie v. Castle, 198 Mass. 82, 84, 76 N. E. 656; Van Camp Hardware & | 83 N. E. 1118; Rev. Laws, chap. 170, SS 1, 6. Iron Co. v. Plimpton, 174 Mass. 208, 75 The question whether the alleged trustee Am. St. Rep. 296, 54 N. E. 538; Boston should be charged depends upon its answer, Type & Stereotype Foundry Co. v. Morti. which is to be taken as true, as no interrog. mer, 7 Pick. 166, 19 Am. Dec. 266; Smith atories have been filed. Rev. Laws, chap. v. Stearns, 19 Pick. 20; Cox v. Central Ver. 189, 88 9–17; Fay v. Sears, 111 Mass. 154; mont R. Co. 187 Mass. 596, 73 N. E. 885; Corsiglia v. Burnham, 189 Mass. 347, 75 Johnson v. Union P. R, Co. 145 Fed. 249, N. E. 253. 29 R. I. 80, 132 Am. St. Rep. 799, 69 Atl. To maintain effectual attachment 298; Wall v. Norfolk & W. R. Co. 52 W. there must be at the date of service a subVa. 485, 64 L.R.A, 501, 94 Am. St. Rep. sisting cause of action which the debtor can 948, 44 S. E. 294; Connery v. Quincy, 0. enforce against the trustee in his own name, & K. C. R. Co. 92 Minn. 20, 64 L.R.A. 624, or the debtor must have intrusted to, or de104 Am. St. Rep. 659, 99 N. W. 365, 2 Ann. posited with the trustee, specific goods or Cas. 347; Davis v. Cleveland, C. C. & St. effects. Wart v. Mann, 124 Mass. 586; L. R. Co. 217 U. S. 157, 54 L. ed. 708, 27 Casey v. Davis, 100 Mass. 124; Howland v. L.R.A.(N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Wilson, I Pick. 18. It is expressly stated Ann. Cas. 907.

in the answer that at the date of service The enforcement of the attachment would the trustee, an interstate railroad company, interfere with interstate commerce.

had in its possession a large number of Gibbons v. Ogden, 9 Wheat. 196, 6 L. freight cars the property of the defendant, ed. 70; Dubuque & S. C. R. Co. v. Richmond, also engaged in interstate commerce. The 19 Wall. 584, 22 L. ed. 173; Davis v. Cleve. cars, if subject to garnishment, were unland, C. C. & St. L. R. Co. 217 U. S. 157, doubtedly goods or chattels within the 54 L. ed. 708, 27 L.R.A.(N.S.) 823, 30 Sup. meaning of Rev. Laws, chap. 189, SS 12, Ct. Rep. 463, 18 Ann. Cas. 907; Wall v. 13, 19; Brown v. Floersheim Mercantile Co. Norfolk & W. R. Co. 52 W. Va. 485, 64 206 Mass. 373, 92 N. E. 494; Rosenbush v. L.R.A. 501, 94 Am. St. Rep. 948, 44 S. E. Bernheimer, 211 Mass. 146, 97 N. E. 984, 294; Connery v. Quincy, O. & K. C. R. Co. Ann. Cas. 1913A, 1317. See also Stat. 1905, 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. chap. 324; Stat. 1910, chap. 214, $$ 23, 24; Rep. 659, 99 N. W. 365, 2 Ann. Cas. 347; chap. 559, $ 3. If received here and to be Michigan C. R. Co. v. Chicago & M. L. S. returned in the ordinary course of business, R. Co. 1 Ill. App. 399; George D. Shore & we should hesitate to say that under no cirBro. v. Baltimore & O. R. Co. 76 S. C. 472, cumstances cars of a foreign railroad com57 S. E. 526, 11 Ann. Cas. 909; Seibels v. pany would be subject to attachment under Northern C. R. Co. 80 S. C. 133, 16 L.R.A. our laws, because the attachment temporar(N.S.) 1026, 61 S. E. 435; Hall v. DeCuir, ily might interfere with interstate com95 U. S. 485, 24 L. ed. 547.

merce, or with the provisions of U. S. Rev.

Stat. § 5258, Comp. Stat. 1913, § 10058, Braley, J., delivered the opinion of the securing continuity of interstate transporcourt:

tation. Davis v. Cleveland, C. C. & St. L. The amended return on the writ having R. Co. 217 U. S. 157, 54 L, ed. 708, 27 L.R.A. been insufficient to show any personal serv- (N.S.) 823, 30 Sup. Ct. Rep. 463, 18 Ann. ice on the defendant, a foreign corporation,! Cas. 907; Minnesota Rate Cases (Simpson described in the writ as having a usual! v. Shepard) 230 V. S. 352, 410, 57 L. ed. place of business at Boston in this com- 1511, 1546, 48 L.R.A.(N.S.) 1151, 33 Sup. monwealth, the court could not enter judg. Ct. Rep. 729; International Harvester Co. ment against the company, which has ap- v. Kentucky, 234 U. S. 579, 588, 58 L. ed. peared specially for the purpose of plead- 1479, 1483, 34 Sup. Ct. Rep. 944; De Rocheing in abatement, or to move that the ac- mont v. New York C. & H. R. R. Co. 75 tion be dismissed. Stat. 1903, chap. 437, S N. H. 158, 29 L.R.A.(N.S.) 529, 139 Am. 62; Rev. Laws, chap. 170, § 1; Eliot v. St. Rep. 673, 71 Atl. 868; Southern Flour McCormick, 144 Mass. 10, 10 N. E. 705;) & Grain Co. v. Northern P. R. Co. 127 Ga. Needham v. Thayer, 147 Mass. 536, 18 N. 626, 9 L.R.A.(N.S.) 853, 119 Am. St. Rep. E. 429; Kimball v. Sweet, 168 Mass. 105, 356, 56 S. E. 742, 9 Ann. Cas. 437; Com46 N. E. 409; Roberts v. Anheuser Busch pare Connery v. Quincy, 0. & K. C. R. Co. Brewing Asso. 215 Mass. 341, 343, 102 N. 92 Minn. 20, 64 L.R.A. 624, 104 Am. St. E. 316; Lawrence v. Bassett, 5 Allen, 140; Rep. 659, 99 N. W, 365, 2 Ann. Cas. 347; Crosby v. Harrison, 116 Mass. 114. But as Wall v. Norfolk & W. R. Co. 52 W, Va. the action was begun by trustee process, the '485, 64 L.R.A. 501, 94 Am. St. Rep. 948, 44


S. E. 294; and Seibels v. Northern C. R., whether the attachment was invalid beCo. 80 S. C. 133, 16 L.R.A.(N.S.) 1026, 61 cause of the plaintiff's failure to comply S. E. 435. Doubtless the compulsory en- with the provisions of Rev. Laws, chap. 167, forcement of a legal right by due process of $ 39, relating to the attachment of railroad law may result in a temporary interference | cars in actual use making regular passages. with the carrier's business, but this was The order of dismissal is affirmed, and the held in Martin v. West, 222 U. S. 191, 197, motion of the trustee to be discharged is 56 L. ed. 159, 162, 36 L.R.A.(N.S.) 592, 32 granted. Sup. Ct. Rep. 42, not to offend against the So ordered. commerce clause of the Constitution. The trustee, however, received and retained the cars under an arrangement or agreement with the defendant which gave it the right

MISSISSIPPI SUPREME COURT. to despatch them to the place of destination

MISSISSIPPI CENTRAL RAILROAD on its own lines, instead of transferring the

COMPANY, Appt., freight to its own cars for further and final transportation. It also could use the empty HATTIESBURG TRACTION COMPANY. cars for the carrying of freight between different points on its own road, and on

(- Miss.

67 So. 897.) the lines of other railroad companies directly or indirectly connected with the rail. Eminent domain crossing railroad road of the owner of the cars, upon pay.

tracks with street railways. ment of fixed daily charges, so long as any main is not necessary to enable a street

An exercise of the riglit of eminent docar remained on tracks that the trustee owned or controlled. The cars thus became ity to lay its tracks along a public high

railway company, having municipal authorfor the time being part of its equipment, way, to cross the tracks of a railroad comand compensation therefor ceased only when pany which are laid across the street at they passed out of the trustee's possession grade. and control. Foster v. New York, N. H. &

(March 29, 1915.) H. R. Co. 187 Mass. 21, 72 N. E. 331; McNamara v. Boston & M. R. Co. 202 Mass. 491, 89 N. E. 131.

the Chancery Court for Forrest County If the trustec is chargeable, it must re sustaining a motion to dissolve an injunctain actual possession so that the cars can tion restraining defendants from attemptbe seized on execution. Brown v. Floers. ing to install or a crossing over heim Mercantile Co. 206 Mass. 373, 376, 92 complainant's land until the institution of N. E. 494. And if this precaution is not eminent domain proceedings and the right to taken it would be answerable for their condemn a crossing has been determined. value, but not to exceed the amount of the Affirmed. judgment. Rev. Laws, chap. 189, $$ 57-65. The facts are stated in the opinion. Cornell v. Mahoney, 190 Mass. 265, 266, 76 Code 1906, § 1876, provides: “Street N. E. 664; Thompson v. King, 173 Mass. railway companies chartered under the laws 439, 53 N. E. 910. The bailment cannot be of this state may acquire a right of way said to be in violation of any rule of pub- across railroads by condemnation by prolic policy to which common carriers of freight should conform. And upon the fur- Note, – Right of railroad company to ther statement in the answer, that the cars

compensation for the crossing of its were in actual use under the agreement at

track, where it intersects a street or the time of service, and that to carry on

highway, by an electric road. its business as a carrier of property inde- As to necessity of making compensation, pendently of the arrangement would be and measure thereof, upon laying out street practically impossible, the trustee ought

across railway property, see note to New

York, C. & St. L. R. Co. v. Rhodes, 24 L.R.A. not to be subjected to the expense of un

(N.S.) 1225. loading and redistribution of their contents,

This note supplements the notes to Chior to the pecuniary loss from interference cago, B. & Q. R. Co. v. West Chicago Street with the use of the cars which would be R. Co. 29 L.R.A. 486, and South East & St. incurred if, having been emptied, they were L. R. Co. v. Evansville & Mt. V. Electric R. collected and retained unused to await the Co. 13 L.R.A. (N.S.) 916, in which the result of the litigation. Van Camp Hard- earlier cases upon the above question are

considered ware & Iron Co. v. Plimpton, 174 Mass. 208,

The general rule laid down in the earlier 75 Am. St. Rep. 296, 54 N. E. 538; Cox v. Central Vermont R. Co. 187 Mass. 609, 73 that a street railway is not an additional

notes prevails in Indiana, where it is held N. E. 885. The trustee not being charge. | burden upon a street, and that the right of able, it becomes unnecessary to determine - such railway to cross the tracks of a steam


ceeding in accordance with the provisions , 240, 34 Am. Dec. 81; Pearson v. Johnson, in this chapter."

54 Miss. 259; Stewart v. Raymond R. Co. Messrs. Truly, Ratliff, & Truly, for ap- 7 Smedes & M. 568; Pearson v. Johnson, pellant:

54 Miss. 259; New Orleans, M. & C. R. Co. Under the provisions of the Constitution v. Frederic, 46 Miss. 1; Pennsylvania R. and statute, a street railway company can- Co. v. Montgomery County Pass. R. Co. 167 not, without exercising the power of emi. Pa. 62, 27 L.R.A. 766, 46 Am. St. Rep. 659, nent domain, tear up the track of a rail. 31 Atl. 468; Cumberland Teleph. & Teleg. road company and install its own crossing. Co. v. Cassedy, 78 Miss. 666, 29 So. 762;

Illinois C. R. Co. v. State, 94 Miss. 759, Louisiana & N. W. R. Co. v. Vicksburg, S. 48 So. 561; Central Pass. R. Co. v. Phila- & P. R. Co. 112 La. 915, 36 So. 803; Hopdelphia, W. & B. R. Co. 95 Md. 428, 52 Atl. son v. Louisville, N. 0. & T. R. Co. 71 Miss. 752; Mobile & O. R. Co. v. Postal Teleg. 503, 15 So. 37; Vicksburg v. Herman, 72 Cable Co. 76 Miss. 731, 45 L.R.A. 223, 26 Miss. 211, 16 So. 434; Shreveport Traction So. 370; Chestatee Pyrites Co. v. Cavenders Co. v. Kansas City, S. & G. R. Co. 119 La. Creek Gold Min. Co. 119 Ga. 354, 100 Am. 759, 44 So. 457; Jaynes v. Omaha Street R. St. Rep. 174, 46 S. E. 422; St. Louis & S. Co. 53 Neb. 631, 39 L.R.A. 751, 74 N. W. F. R. Co. v. Southwestern Teleph. & Teleg. 67; Birmingham Traction Co. v. Birming. Co. 58 C. C. A. 198, 121 Fed. 276; Slaugh- ham R. & Electric Co. 119 Ala. 129, 24 So. ter v. Meridian Light & R. Co. 95 Miss. 251, 368. 25 L.R.A.(N.S.) 1265, 48 So. 6, 1040; Cum- Messrs. Stevens & Cook, for appellee: berland Teleph. & Teleg. Co. v. Yazoo & M. Plaintiff had no such property in or on Valley R. Co. 90 Miss, 686, 44 So. 166; Main street as made it necessary for deAtlantic & B. R. Co. v. Seaboard Air-Line fendant to resort to eminent domain proR. Co. 116 Ga. 412, 42 S. E. 761; Thompson ceedings before installing the crossing. v. Grand Gulf R. & Bkg. Co. 3 How. (Miss.) Pennsylvania Co. v. Lake Erie, B. G. & railroad at a street crossing is subject to, with the consent of the trustees of the town, no conditions other than those to which the without the consent and against the will of general public is subject in traveling over the railroad, although the latter owned the such street. Baltimore & 0. S. W. R. Co. land in fee. v. Cincinnati, L. & A. Electric Street R. In Lake Shore & M. S. R. Co. v. ChauCo. 52 Ind. App. 639, 99 N. E. 1018; Michi. tauqua Traction Co. 54 Misc. 275, 104 N. Y. gan c. R. Co. v. Hammond, W. & E. C. Supp. 550, it was held that a street railway Electric R. Co. 42 Ind. App. 66, 83 N. E. company had not, under a franchise from a 651. And the same result was reached in village and order from the State Railroad Galveston, H. & S. R. Co. v. Houston Commission, the right to cross the tracks Electric R. Co. 57 Tex. Civ. App. 170, 122 of a steam railroad on an overhead bridge S. W. 287.

built by the latter to carry the travel of a And in Evansville & S. I. Traction Co., street over its tracks, without the consent v. Evansville Belt R. Co. 44 Ind. App. 155, of the railroad, and without having applied 87 N. E. 21, the rule was recognized that a to the court for the right to cross, or for steam railroad which has been granted a the appointment of commissioners to fix the right to occupy a public street takes the point of crossing or compensation to be paid right subject to the power of the city or under $ 12 of the Railroad Law, Laws 1890, town to authorize the construction of a p. 1087, chap. 565, althou h chap. 754, p. street car line by proper means across the 794, Laws 1897, vested the determination tracks of the railroad, and that the latter of the manner in which the crossing should has no right to object to such crossing. be made in the State Board of Railroad

And it was held in Michigan c. R. Co. Commissioners, since the provisions of g 12 v. Hammond, W. & E. C. Electric R. Co. were held to remain in full force as to the supra, that the operation of a street rail- determination by court commissioners of the way being a proper use of a street and a point of crossing and compensation. form of passage within the scope of a high- And it appears in Olean Street R. Co. v. way dedication, a railroad which had dedi. Pennsylvania R. Co. 75 App. Div. 412, 78 cated land for a street across its tracks N. Y. Supp. 113 (affirmed on opinion below could no more object to the passage of in 175 N. Y. 468, 67 N. E. 1068), that comstreet cars than to the passage of carriages, missioners appointed under $ 12 of the Rail. omnibuses, or any recognized mode of high- road Law, Laws 1890, chap. 565, as amended way travel.

by Laws of 1892, chap. 676, have the right And in Pittsburgh, C. C. & St. L. R. Co. to fix the compensation to be paid by a v. Muncie & P. Traction Co. 174 Ind. 167, street railway for crossing the tracks of a 91 N. E. 600, it was held that an inter- ! steam railroad. The question involved in urban street railway carrying passengers, that case was as to the power of the court baggage, express, and freight was not an to authorize a street railway which had apadditional burden upon a street for which plied for the appointment of commissioners damages might be recovered, and that it to determine the compensation to tempo. had the right to lay its tracks across those rarily lay its tracks across those of a steam of a railroad where they crossed a street | road.

J. T. W.

N. R. Co. 146 Fed. 446; South East & St., right to condemn a crossing has been juL. R. Co. v. Evansville & Mt. V. Electric dicially and finally determined.” R, Co. 13 L.R.A.(N.S.) 918, note; Atchison, Upon the filing of this bill a temporary T. & S. F. R. Co. v. General Electric R. Co. injunction was issued and served upon the 50 C. C. A. 424, 112 Fed. 689; Chicago, B. traction company, and this appeal is from & Q. R. Co. v. Steel, 47 Neb. 741, 66 N. W. a decree sustaining a motion to dissolve 830; Southern R. Co. v. Atlanta R. & P. this injunction, and is for the purpose of Co. 111 Ga. 679, 51 L.R.A. 125, 36 S. E. 873; settling the principles of the case. After General Electric R: Co. v. Chicago & W. I. the granting of this injunction, an agreeR. Co. 184 Ill. 588, 56 N. E. 963; Williams ment was entered into between the two comValley R. Co. v. Lykens & W. V. Street panies by which the traction company was R. Co. 1 Dauphin, Co. Rep. 225; West Jer- permitted, without prejudice to the rights sey R. Co. v. Camden, G. & W. R. Co. 52 of the railroad company in so far as this litiN. J. Eq. 31, 29 Atl. 423; New York, N. H. gation is concerned, to complete the installa& H. R. Co. v. Fair Haven & W. R. Co. 70 tion of this crossing and to use the same. Conn. 610, 40 Atl. 607, 41 Atl, 169; New The reason assigned by the traction comYork, N. H. & H. R. Co. v. Bridgeport Trac- pany for attempting to install this crossing tion Co. 65 Conn. 410, 29 L.R.A. 367, 32 during the night is that to do so would not Atl. 953; Detroit Citizens' Street R. Co. v. then interfere with the movement of trains Detroit, 26 L.R.A. 674, 12 C. C. A. 365, 22 over the railroad track; it not having comU. S. App. 570, 64 Fed. 628; 36 Cyc. 419f; menced the installation until the last train Central Pass. R. Co. v. Philadelphia, W. & due to cross the street that night had B. R. Co. 95 Md. 428, 52 Atl. 752.

passed. With the truth of this explanation,

however, we are not here concerned. The Smith, J., delivered the opinion of the sole question presented to us for decision court:

is this: Has a street railway company, The Mississippi Central Railroad Com- operating under municipal authority, the pany owns and operates a railroad which right to construct its track across that of extends through the city of Hattiesburg, a steam railroad at a point where it crosses crossing a number of the streets of the city, a street of the municipality, without first one of them being Main street. The Hat- instituting condemnation proceedings and tiesburg Traction Company is a street rail-paying the railroad company the damages way company, and has received from the therein awarded it? city of Hattiesburg permission to lay its It is true that a railroad company's right tracks in the city streets. In extending its of way, when owned by it, is its private track along Main street it became necessary property, and cannot, under $ 17 of our to cross the track of the railroad company, Constitution, “be taken or damaged for and negotiations were entered into by it public use, except on due compensation bewith the railroad company for that pur- ing first made;" but it is equally true that pose; the traction company agreeing to in- a railroad company does not the stall and maintain the crossing at its own streets of a municipality along or across expense. The two companies failed to reach which its tracks are laid, neither can it acan agreement in the matter, not by reason quire, under § 3322 of the Code, any exof any objection of the railroad company clusive right to the use of the streets of to the character of crossing proposed to be the municipality. The only right it can acinstalled by the traction company, but quire in the streets of a municipality is the mainly because that company would not right to locate its tracks along or across agree to operate its road at the crossing in them, subject to the right of the public to accordance with certain requirements of the continue the free use thereof for traveling, railroad company.

and to the right of the municipal authoriFailing to obtain the consent of the rail. ties to grant similar easements therein. In road company to cross its track, the trac- Pennsylvania Co. v. Lake Erie, B. G. & N. tion company proceeded one night to install R. Co. (C. C.) 146 Fed. 446, a case wherein, the crossing without the knowledge of the as in the case at bar, the complainant was railroad company. This fact was discovered a railroad company and the defendant a by the railroad company the next morning street railway company, it was said that before the installation was complete, and “complainant's bill assumes the possession it thereupon filed its bill in the court be- by complainant of a right in the street low, praying that the traction company be which in law it cannot possess. The bill enjoined “from attempting to install or use alleges that the defendant is about to enter a crossing over the line and roadbed of upon complainant’s ‘right of way. In the complainant at Main street crossing in the sense in which this term is used in the bill, city of Hattiesburg, until eminent domain the complainant has no right of way in the proceedings have been instituted, and the street; that is, it has no tangible property




therein. True, it has in strictness a right, future determination of the court.” It was of way across the street; but this right is held that the street railway company, beof an intangible nature. It has no more fore it crossed the track of the railroad substance than the right of way over a company, must execute an agreement for street possessed by a pedestrian. So that the maintenance of the crossing. This was to say that the defendant is about to enter the only question decided in that case; and, upon complainant's right of way,' meaning if it is in point here, it is only authority the right of way it possesses across the for the proposition that, when a street railstreet, is to say that the defendant is about way company desires to cross the track of to do what any and everybody has a right a railroad company in a public street, it to do at all times, subject only to the move- must pay the expense of installing and ment of complainant's trains. What the de- maintaining the crossing. Neither of these fendant proposes to do is to introduce in questions, however, is here involved, for the the public highway, at the point where com- reason that the street railway company plainant's tracks cross it, another public has paid the expense of installing the crossuse thereof, under authority of the munici. ing and proposed to bear the expense of pal legislation necessary in such cases. The maintaining it. complainant has no property in the street, In the case of Birmingham Traction Co. and none on it except a few ties and rails. v. Birmingham R. & Electric Co. 119 Ala. The disturbance of these for the purpose of 129, 24 So. 368, so much relied upon by suiting them to the new use to be made of counsel for appellant, no question of the the public highway is necessary, and re- right of one railroad company to cross the sults in invasion of complainant's tracks of another in a public street was rights."

involved. That case was decided by the suThe rule here announced is in accord with preme court of Alabama on August 15, all of the authorities dealing with this pre- 1898, and on October 29, 1898, another cise question that have come under our ob- phase of the matter in dispute between the servation, most, if not all, of which, will be parties thereto came again before that court found set forth in the notes to 36 Cyc. for consideration in the case of Birming1420; Chicago, B. & Q. R. Co. v. West Chi- ham Traction Co. v. Birmingham R. & Eleccago Street R. Co. 29 L.R.A. 485, and South tric Co. 119 Ala. 137, 43 L.R.A. 233, 24 So. East & St. L. R.


Evansville 502. An examination of the reports of the & Mt. V. Electric R. Co. 13 L.R.A.(N.S.) two cases discloses that the Birmingham 916.

Railway & Electric Company had granted A number of cases have been cited by to the town of Woodlawn, "for the use of counsel for appellant to the point that a the citizens and the public generally, an railroad company's right of way is private easement over that part of its right of way property, and cannot be taken or damaged which is within the corporate limits of the for public use except on due compensation town of Woodlawn, and which is not absobeing first made, in none of which, how- lutely essential for the operation of its ever, was the right of the street railway to road, this amount being about 25 feet for cross the track of a railroad in a public double track, and such room as is necessary street involved, except in the case of Cen- to erect poles and proper waiting stations." tral Pass. R. Co. v. Philadelphia, W. & B. In the first case the Birmingham TracR. Co. 95 Md. 428, 52 Atl. 752. In that tion Company attempted not only to lay case the street railway company undertook its track across that portion of the Birto cross the track of the railroad company mingham Railway & Electric Company's in a public street, whereupon the railroad right of way which had been granted to the company filed a bill in the proper court, town of Woodlawn for a public street, but praying "for an injunction to restrain the also across the 25-foot strip actually occustreet railway company from” crossing its pied by the electric company, and not intrack until it, the street railway company, cluded in the street. This, the court held; would enter into an agreement to pay not could not be done without the consent of only the cost of making the crossing, but the electric company, in the absence of the subsequent cost of keeping the crossing condemnation proceedings. In the second in repair, which repairs, it was insisted, case the traction company was seeking to should be made under the supervision and locate its track along that portion of the according to the direction of the engineer electric company's right of way which had of the railroad company. While the litiga- been granted to the town for å street, and tion was pending, “the street railway com- this the court held it could do without pay. pany, under an agreement with the steam ing the electric company any compensation railroad company, made the crossing at its therefor, the court pointing out (119 Ala. own expense, and the question as to the 137) that the former case involved not the relative rights and obligations of the two use by the traction company of that porcompanies

was reserved for the I tion of the right of way over which the city

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